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Patent Drafting: Not as Easy as You Think

This is one of those articles that I write every so often, in slightly different ways, in order to try and explain to inventors what it is that they need to know before they make an enormously costly mistake. For better or for worse, there is a popular misconception that patent attorneys and patent agents are not really necessary and an inventor can do it themselves and save money. The truth is that patent attorneys are among the most highly trained attorneys you will ever meet. In addition to having to successfully complete law school and taken a State Bar Examination, patent attorneys must have a scientific background or else they cannot even sit for the Patent Bar Examination. As John White explains, a person becomes a patent attorney when they lack sufficient personality and charisma to do tax work! But when it comes to describing your invention in a document that will grant you exclusive rights with respect to only what is disclosed and claimed, isn’t that the exact type of person you want in your corner?

Of course, financial resources can and do provide a real impediment to moving forward with any business opportunity. Unless you are independently wealthy you are almost certainly going to need to proceed one step at a time as you move forward toward your goal of commercial success and financial reward. That means investing wisely, and sometimes doing more on your own than you would like. To get from point A, where you have an idea or early stage invention, to point B, where you are reaping the rewards, it is imperative to proceed in a business responsible way. That must also include proceeding with your eyes fully open and understanding the potential pitfalls and consequences if you are going to attempt to represent yourself in the patent world. If the choice is to move forward on your own versus not moving forward at all, then representing yourself is the only option. If you have the choice and can afford professional assistance, hiring a patent practitioner should be considered essential.

One reason you want to hire a patent attorney to help you, if you can afford one, is because it is extremely easy for inventors to make mistakes that will render their hopes and dreams of a patent null and void. I cannot tell you how many times over my career I have talked to inventors who have come up with something special and are now ready to file a patent application. Frequently the story is that the inventor created something several years ago (perhaps more) and they have been using it and people love it. They finally now have the money to pursue a patent and want to get started. Those familiar with patent law know they cannot get started, because rights have irreparably been lost. The only recourse is to improve your magnum opus enough so that it is patentably unique compared to your original invention, which is not something that is typically easy to do. This now is an even more acute problem given that the United States has converted to a first to file system.

If you are considering moving forward on your own the first question you should ask is whether you should even be pursuing an invention. The cost of filing for and obtaining a patent is typically quite minor in comparison to the amount of money required to create, market and distribute the invention. So if you can only muster several hundred dollars and need to file your own application because that is all you have, what are the realistic chances that you will be able to move forward in the commercialization process? I understand it is prudent to proceed with care and not needlessly waste money, but a couple hundred dollars is not a realistic budget. Truthfully, you might as well go to Vegas and put it all down on black (or red) and let it ride. At least you have close to a 50% chance, which is a greater chance of success than having only a few hundred to spend on your invention.

Then there is the inventor who has a plan, knows what they want to do, is organized, but believes patent attorneys are unnecessary. They are convinced that any average Joe can draft a patent application, and patent attorneys are too expensive anyway. Invariably these inventors get such narrow rights that they are practically useless. I don’t mean to poke fun, but I am trying to illustrate a point. Deep down inside everyone has to know that a professional who has spent years of time training, and years of time reading, writing and prosecuting patent applications for 40+ hours a week knows far more about what is required than someone without any training in the field, right?

On top of this, for well over 100 years courts have marveled at how difficult it is to draft a patent application. Starting in 1892, in the case of Topliff v. Topliff, 145 U.S. 156, the United States Supreme Court explained that a patent application is one of the most difficult legal instruments that can be drafted. In this regard the Supreme Court explained:

The specification and claims of a patent, particularly if the invention be at all complicated, constitute one of the most difficult legal instruments to draw with accuracy, and in view of the fact that valuable inventions are often placed in the hands of inexperienced persons to prepare such specifications and claims, it is no matter of surprise that the latter frequently fail to describe with requisite certainty the exact invention of the patentee, and err either in claiming that which the patentee had not in fact invented, or in omitting some element which was a valuable or essential part of his actual invention.

This very same assertion was echoed by the United States Supreme Court 1963 in Sperry v. Florida, 373 U.S. 379, when Chief Justice Earl Warren explained:

Such conduct inevitably requires the practitioner to consider and advise his clients as to the patentability of their inventions under the statutory criteria, 35 U. S. C. 101-103, 161, 171, as well as to consider the advisability of relying upon alternative forms of protection which may be available under state law. It also involves his participation in the drafting of the specification and claims of the patent application, 35 U. S. C. 112, which this Court long ago noted “constitute[s] one of the most difficult legal instruments to draw with accuracy,” Topliff v. Topliff, 145 U.S. 156, 171.And upon rejection of the application, the practitioner may also assist in the preparation of amendments, 37 CFR 1.117-1.126, which frequently requires written argument to establish the patentability of the claimed invention under the applicable rules of law and in light of the prior art.

Still further, it was recognized by the United States Court of Appeals for the Federal Circuit in 1988 in Laitram Corp. v. Cambridge Wire Cloth Co., 863 F.2d 855, when Chief Judge Howard Markey explained:

This appeal again illustrates one of the many difficult dichotomies that lurk in the lacunae of patent law. On one side rests the very important, statutorily-created necessity of employing the clearest possible wording in preparing the specification and claims of a patent, one of “the most difficult legal instruments to draw with accuracy.” On the other lies the equally important, judicially-created necessity of determining infringement without the risk of injustice that may result from a blindered focus on words alone.

Chief Judge Markey had a gift for language that could rival Shakespeare himself. According to Dictionary.com, the term “lacunae” means “a gap or missing part, as in a manuscript, series, or logical argument.” So not only is a patent application one of the most difficult legal instruments to draft, but patent law has some lurking gaps and missing parts! It is hard to imagine a truer, more fair characterization from the first man to head the Federal Circuit. If this description of patent law and patent applications doesn’t sum up exactly why inventors should seek the advice of patent attorneys, I don’t know what will.

Even more recently though, in 2004 in Chef America v. Lamb-Weston, the Federal Circuit was issued a decision that will really drive home how important it is to choose your words in order to make sure your words are exactly what you mean to say. In this instantly famous case the Federal Circuit had to interpret the meaning of the phrase “heating the resulting batter-coated dough to a temperature in the range of about 400° F. to 850° F.” What should have been said was “heat the oven to a temperature in the range of about 400° F. to 850° F.” Because what was said literally required the internal temperature of the dough to reach between 400° F. to 850° F., the patent owner had a useless patent because if the dough were actually heated to that temperature it would be destroyed. The moral of the story is that inventors need to know that what they say will be interpreted literally. You get great latitude to define the invention, but because it is up to you to define the invention the court will not fix what is said, even when everyone obviously knows what you most likely meant.

In addition to writing for IPWatchog.com, I have spent the last 15 years working with independent inventors and teaching law students how to pass the patent bar and how to be patent attorneys. I have taught patent law, patent claim drafting, patent application drafting and licensing. I have come up with a unique process to help coax information about inventions out of inventors through a mentored system called the Invent + Patent System. This is an excellent start to the process, and if inventors really put in time and follow the directions they can come out with a really good provisional patent application. But an attorney can always make it better. The reality is that attorneys don’t run out of time to work on an application, clients run out of money. Still, if the only option is to proceed on your own the the Invent + Patent Systemwill get you as far as you can realistically go on your own.

A good patent attorney can always make an application better by spending additional time on the application. You do reach a point of diminishing returns though, so you get to a high level that is acceptable and file the application. But don’t fool yourself if you are an independent inventor. While you may need to cut corners to get from point A to point B, patent attorneys are not superfluous. If we were do you really think major corporations and stingy venture capitalists would hire patent attorneys to create and develop their patent portfolio? Of course not. If this were really so easy corporations would have their scientists and engineers, many who have PhDs, do the work. They don’t for a reason.

For those interested in learning the art of drafting, whether to represent themselves or just to become a better consumer of legal services, please see these articles on IPWatchdog.com:

The Author

Gene’s particular specialty as a patent attorney is in the area of strategic patent consulting, patent application drafting and patent prosecution. He has worked with independent inventors and start-up businesses in a variety of different technology fields, but specializes in software, systems and electronics.

Gene is admitted to practice law in New Hampshire, is a Registered Patent Attorney licensed to practice before the United States Patent Office and is also admitted to practice before the United States Court of Appeals for the Federal Circuit.

Gene is a graduate of Franklin Pierce Law Center and holds both a J.D. and an LL.M. Prior to law school he graduated from Rutgers University with a B.S. in Electrical Engineering.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 38 Comments comments.

angry dudeMay 18, 2014 9:59 pm

“…what it is that they need to know before they make an enormously costly mistake.”

:):):)
For me, this “costly mistake” albeit not “enormously costly mistake” (just a few tens of thousand and several years of my life consumed) was resorting to patent system in the first place

US patent system has been on life support since 2005 but it will be officially pronounced dead within the next couple of weeks

And there will go all the self-glorifying patent attorneys in this country – to the dust bin, the remaining ones being reduced to lowly paper pushers on their corporate masters payroll

“fool me once – shame on you, fool me twice – shame on me”

AnonMay 19, 2014 8:33 am

angry dude,

Take a pill. 😉

American CowboyMay 19, 2014 9:50 am

Dude, what is the event that you predict will happen in the next couple of weeks that will have that effect?

AnonMay 19, 2014 10:18 am

AC,

Perhaps angry dude is considering that the Supreme Court will render a decision in the Alice case that will eviscerate patent coverage for software related inventions.

Gene QuinnMay 19, 2014 1:58 pm

angry dude-

Did you represent yourself, or did you have a patent attorney represent you?

I agree that the answer is almost certainly self-evident, I would just like to know for certain.

As I’m sure you have experienced, inventors who represent themselves wind up either getting claims that are so narrow that they are nearly useless, or they simply get no claims at all because they continue to want claims that clearly read on the prior art.

It is really impossible to have a gripe with the patent system if you as an inventor with no experience are representing yourself. To indict the patent system under those circumstances would be akin to indicting a hospital because you decided to perform a do-it-yourself appendectomy.

-Gene

AnonMay 19, 2014 4:53 pm

I think you are being kind by providing an example of an appendectomy…

angry dudeMay 19, 2014 10:01 pm

Gene,
Of course, I was represented by an attorney, a senior founding partner of a very respectable small law firm
(I checked his work before parting with my hard earned $$$$)
Cost me 25K (years ago) but this figure included our trip to Wash DC for an interview with clueless examiner

And the event I am talking about is the “anti-trolls” legislation still brewing in US Senate
(They collectively spent 100s of millions of $ to bring it to this point)
And no, I do not need a pill – I already took my pill years ago, nothing upsets me anymore
But many of you will need pills, perhaps lots of pills, if this legislation passes

MaxDreiMay 20, 2014 1:37 am

Acting for Inventors who are paying their own way is risky.

Sometimes they have the mindset that, the more money they pay out, the more they are entitled to be issued with a patent. When that doesn’t work out, they can get very upset. Brooding, they have to find somebody to blame. That’s when their attorney can cop it.

angry dudeMay 20, 2014 10:53 am

Max, dude
how many times should I state than being issued a valid patent used by the industry and being able to collect on that patent are two completely different things ?
Is this concept too hard for you to grasp ?
Wait couple weeks then
those “troll fighters” in congress aren’t going away
the new definition of “troll” – anyone/anything with a patent and not on Fortune 500 list
Better call your senator now or there won’t be any clients for you, patent attorney types

AnonMay 20, 2014 12:21 pm

“Better call your senator now or there won’t be any clients for you, patent attorney types”

There will always be clients, angry dude.

They may not be the type of client one would hope for, but don’t you fret about us.

angry dudeMay 20, 2014 12:53 pm

“They may not be the type of client one would hope for”

Incorrect, those will be the precise type of clients you would want – apples and googles of the world, but there is little problem: most of you won’t be getting those clients…
too many patent attorneys in this country
time for headcount reduction :):):)

AnonMay 20, 2014 1:18 pm

angrydude,

Kindly refrain from telling me what type of clients I would want when it is clear from my posts that I want something else.

If I wanted someone to put words in my mouth that do not belong there, I know of another blog I can go to.

(and I fear no headcount reduction – the cream always rises)

angry dudeMay 20, 2014 2:34 pm

anon

me thinks that you, like everyone else, prefer well-paying corporate clients who can write you a sizable retainer check before bothering you with stupid quiestions

sorry to tell you, but there won’t be enough of those left if patent legislation passes
There won’t be any individual or small business patent seekers very soon

You can think whatever you like, but really patent attorneys like clients who pay period. You can think that most patent attorneys prefer corporate clients, but that would be quite erroneous.

Having said that, what most patent attorneys prefer, even demand, are clients that are realistic. Your comments here suggest that you are bitter because you did not get the patent rights you believed you were entitled to get. We all see that all the time. Unrealistic expectations leads to many bitter clients, particularly clients who are independent inventors.

It also seems that you are bitter by the fact that getting a patent is different from monetizing the patent through licensing, which today requires litigation. The reality is that going down the patent path is expensive. If you didn’t have a strategy to enforce the patents, or a reason to use the patents to leverage a new or ongoing business, then why did you pursue a patent in the first place? It sounds like you ran into the patent space without an end game plan in place.

Finally, as for the patent legislation in the Senate, it seems rather dead. It is important to keep an eye on things no doubt, but patent reform is almost certainly dead for 2014. Even if a bill comes out of the Senate it will be quite different from what came out of the House, which would normally mean a Conference between the Senate and House. The problem is Judiciary bills are not historically sent to conference, so that means going back to the House. The opposition would follow, the House won’t likely swallow whatever the Senate comes up with even if the Senate comes up with something. So we get into Capitol Hill ping pong. That is why folks are more concerned. The calendar and election suggests nothing will likely happen.

Finally, even if something happens it will undoubtedly present more opportunity for patent attorneys. As the law gets more complicated attorneys always make more money. So your predictions are really rather ridiculous about the demise of patent attorneys. For example, if fee shifting gets passed then you should anticipate a cottage industry that will go after large corporations who infringe without any care.

angry dudeMay 20, 2014 4:38 pm

Gene,

“Your comments here suggest that you are bitter because you did not get the patent rights you believed you were entitled to get”
Not only I got the Patent (after first office action) with over 60 claims (9 of them ndependent) but I also managed to sue a rising silicon valley corporation

“as for the patent legislation in the Senate, it seems rather dead”
I will mark your words

“… if fee shifting gets passed then you should anticipate a cottage industry that will go after large corporations who infringe without any care”

Huh ???
Don’t we already have this “cottage industry” called “patent trolls” or “patent assertion entities” doing precisely the same thing ?

Gene QuinnMay 20, 2014 4:43 pm

angry dude-

If you were able to get a patent after the First Action you didn’t get claims that were as broad as they could have been.

If you were able to successfully monetize then why do you always complain, complain, complain? There is a disconnect between your “I hate patents and patent attorneys” and the story you are selling at the moment.

You ask: “Don’t we already have this “cottage industry” called “patent trolls” or “patent assertion entities” doing precisely the same thing ?”

No. Not surprisingly you don’t understand the industry very well, or what will happen if the legislation passes. Patent trolls are those who engage in extortion like activity and seek to settle claims for maybe $10K to $50K. They are increasingly suing smaller companies who can’t fight.

If fee shifting passes and a prevailing party can obtain fees then litigation attorneys will be interested in defending small businesses against trolls and then obtaining their fees after they prevail. Litigation attorneys will also be far more interested in taking patent infringement cases where large corporations are trampling on the rights of independent inventors and small businesses.

Every so often I read in this blog or the Crouch blog a statement that reveals the gulf of misunderstanding that exists, in patent practice, between Europe and the USA. Can somebody please reconcile what to me seems like a flat contradiction between the denial of anything amounting to “wearing down” a PTO Examiner and Gene’s reply to Mr Angry, immediately above:

“If you were able to get a patent after the First Action you didn’t get claims that were as broad as they could have been.”

At the EPO, the longer you continue to argue the toss, the less amenable the Office progressively gets. At the EPO, it pays to do it once, and get it right first time. The Examiners have to. No coming back again for them, with yet more searches or objections that didn’t occur to them earlier. And they tend to think that you, the Applicant, should have to get it right first time too. Is that understandable?

AnonMay 21, 2014 8:26 am

MaxxDrei,

I think that you have jumped into a gulf of misunderstanding yourself.

There is no sense of “wearing down.”

Instead, there is a sense of negotiation. Negotiation, on its own, cannot be said to rise to the level of “wearing down,” as that level is only reached when it includes a sense of abject obstinance or wrongful behavior.

The implication used by Gene does not carry that meaning. Instead, the implication is that an applicant, knowing full well that the patent application examination process involves a give and take negotiation, plans for that negotiation with purpose and intent to start with asking for the maximum possible protection – even to the point that some push back and lesser level of protection is then sought by the examiner.

The meaning here is nothing more than the sense that “something is left at the table” because the first asking was so easily accepted.

Since applicants are not charged with examination there is no such impetus as you would suggest that the applicant nail the level of protection asked for to be right the first time too. Such is rather a pollyanna and unreasonable position and exists only when one does not understand the US rule of law.

So I see you making a double mistake: not understanding what is entailed in a negotiation and thinking that some untoward ‘wearing down’ is even present given a non-negotation state.

MaxDreiMay 21, 2014 9:16 am

Thanks for those thoughts, Anon. The EPO does “negotiation” too. That’s what all those “auxiliary requests” are all about.

EPO-style auxiliary requests can be seen as equivalent to dependent claims, just fall-back positions. But, again, at the EPO, failing to get them in at the outset carries serious risks for your client. When entering First to File Bandit Country, you have to aim to write, and include in the original filing, before the end of the Paris priority year, all the dependent claims you might conceivably need, downstream.

Not so at the USPTO, I do understand.

AnonMay 21, 2014 9:52 am

If I many be so bold as to state that you do not understand directly in a correct manner.

I say this, not any immediate statement, but rather on what I remember of conversations regarding “New Matter” rules and ipsis verbis treatment similarities and differences between US and EPO laws.

What an applicant presents at the time of filing – in toto – is a limit in both regimes. Both regimes have hard and fast no new matter laws governing the content based strictly on file date.

What an applicant an claim throughout the life of the application, appears to be different based on a more strict “word for word” protocol in the EP. The US appears to have a more liberal policy as to amendments that while not appearing “word for word” are nonetheless supported in the application as filed.

Right. I’m the patent expert and have written about patent legislation, rulemaking and litigation abuse for most of the last decade, but I don’t see the big picture. But novice you can see the big picture clearly. What a joke.

I just wish you would pick a lane. Your posts are schizophrenic. You complain all the time about the patent system and how patents are worth anything and only stupid people apply for patents, but then you want us to believe you got a good patent, with great claims and successfully monetized through litigation. Wow!

All I can say is you do whatever you want. I’m sure you will convince a few hapless souls along the way that it is stupid to even apply for a patent. You and they can live content with your limited understanding while those who want to be truly successful innovators will continue to rely on the patent system.

-Gene

AnonMay 21, 2014 11:21 am

Gene,

In past conversations with MaxDrei, (please correct me if I err, MaxDrei, as I am drawing this purely from memory) it was put forth that the EP “rightfully” limits amendments to a very strict “as worded” support in the document as filed protocol, based on the fact that the EP operates in multiple languages, and the subtleties of even one language can be fairly daunting. Contrast that with US practice that makes it a point that ipsis verbis is not required (and that the US only uses one language).

Please don’t get me wrong: I don’t doubt your patent expertise – but it’s mostly on patent prosecution side
But have you litigated a patent infringement case on behalf of a patent holder lately ?
Things are vastly different today on a litigation front from just a few of years ago when I tried (unsuccesfully) to monetize my patent (I managed to ruin company’s stock though)
And yes, it can be very costly mistake to apply for a patent in the current environment
It’s quid without a quo
Perhaps you should start telling this to your prospective clients

AnonMay 21, 2014 12:12 pm

angry dude,

I agree with Gene as to how you are coming across in a rather schizophrenic manner.

Likewise, you appear to denigrate things that you just don’t know about. For example, your post at 30 seems to imply that an attorney does not appraise their client of the risks involved.

I know of no attorney that would think to operate in that manner. Not just for the immediate sense of looking out for the client, but even the less than noble aspect of just looking out for yourself.

I think that you read far too much from your own experiences into general conversations.

Gene QuinnMay 21, 2014 2:07 pm

Angry dude-

How many patent infringement cases have you litigated on behalf of a patent holder lately? I thought you weren’t even a lawyer.

Why would I tell prospective clients that they shouldn’t apply for patents when that is bad advice?

You do realize there are many reasons to obtain a patent, correct? For example, without issued patents raising funds is practically impossible. Having a patent also provides an advertising and marketing benefit. It seems that you applied for a patent in an area where you were not doing business. You then erroneously extrapolate from that to assume that since you weren’t able to make any money then no one else should apply for a patent because it is a waste. The arrogance of your position is extraordinary.

While you think you know a lot, you really know very little. You have previously complained about filing a patent application and the patent publishing without ever knowing if you would get a patent. That, however, is extremely easy to fix with a non-publication request, which you obviously weren’t familiar with.

Anyone who listens to you, an admitted novice who is bitter by your own specific situation, will get what they deserve.

angry dudeMay 21, 2014 3:21 pm

“…without issued patents raising funds is practically impossible”

So although it’s practically impossible to enforce your patent today, it’s also practically impossible to raise funds without patent ?
Me thinks there is some logical fallacy here…

“Having a patent also provides an advertising and marketing benefit”

Oh yeah, I got so much advertizing that those corporate R&D types turn around and run away as fast as they can

“It seems that you applied for a patent in an area where you were not doing business”

Correct. But “Patentability shall not be negatived by the manner in which the invention was
made”
You either have Intellectual Property (sellable, assignable, auctionable, transferrable, enforceable) or you don’t
And if you don’t have it then you don’t need so many IP Lawyers

“…is extremely easy to fix with a non-publication request, which you obviously weren’t familiar with”

C’mon Gene, I also went PCT route so procedure was a little different but it’s not even worth discussing anymore – completely unimportant

Novice I may be, but I brought one horrible black friday on poor unsuspecting shareholders

Gene QuinnMay 21, 2014 4:18 pm

Angry-

You say: “So although it’s practically impossible to enforce your patent today, it’s also practically impossible to raise funds without patent ? Me thinks there is some logical fallacy here…”

You can think there is a logical flaw all you want, but what I said was perfectly clear and 100% correct. The fact that you don’t know this truth to be correct speaks volumes about just how little you know about patents, business and the business of patents.

You say: ” I got so much advertizing that those corporate R&D types turn around and run away as fast as they can”

Again, you are erroneously presuming that your ill-fated, poorly considered foray into the patent world provides you the ability to extrapolate and assume that everyone is similarly making poor decisions. You innovated in an area where you were not otherwise doing business and were hoping to sue others or get a license. The far more common profile of a patent applicant is one who is starting a business or is already engaged in business in a certain area. So your experience is wholly irrelevant when it comes to the vast majority of those who use the patent system.

You say: “I also went PCT route…”

WOW! You invented in an area where you were not doing business and you filed a PCT and tried to get foreign patent rights? And then you complain about patent enforcement? I can’t begin to tell you how astonishingly naive you are. Here I thought you were a serious inventor or business person with a gripe. But you just ran off to get worldwide rights without a strategy, it backfired on you and your answer is to belittle the patent system and patent attorneys. You really need to look in the mirror!

Gene QuinnMay 21, 2014 4:19 pm

By the way… patent reform is officially dead. Article forthcoming!

angry dudeMay 21, 2014 4:25 pm

“patent reform is officially dead”

Woo – Hoo !!!!!!

time for a beer !

let’s hope it stays dead and is not reinstated next year

my patent just got an extended lease on life

Gene QuinnMay 21, 2014 5:44 pm

EVERYONE… particularly Anon, MaxDrei and Step…

A week or 10 days ago I modified the spam filter for comments, which seems to have resulted in far fewer legitimate comments going into spam. Unfortunately, as you may have noticed, we have periodically experienced server overload. It was just diagnosed as comment spam attacks that are pushing such massive amounts of data over such a short period of time that the server cannot handle it. With that in mind, I’ve reactivated the anti-comment spam plugin I was using previously at least for now. This will likely lead to some more comments getting spammed. I have still kept other changes, so hopefully it won’t be a problem, but wanted to let you know.

If a comment gets caught in the spam filter please use the form at the URL below to send me a note and I will fish it out:

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